State Of Louisiana v. Demario G. Warren

Opinion

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 KA 1314

STATE OF LOUISIANA

VERSUS

DEMARIO G. WARREN

DATE OFJUDGMENT. JUN 151023

ON APPEAL FROM THE TWENTY- SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON, STATE OF LOUISIANA NUMBER 16 CR6 132566, DIVISION E

HONORABLE WILLIAM H. BURRIS, JUDGE

Warren LeDoux Montgomery Counsel for Appellee District Attorney State of Louisiana J. Bryant Clark, Jr. Matthew Caplan Assistant District Attorneys Covington, Louisiana

Luke Lancaster Assistant District Attorney Franklinton, Louisiana

Gwendolyn Brown Counsel for Defendant -Appellant Baton Rouge, Louisiana Demario Warren

BEFORE: THERIOT, CHUTZ, AND RESTER, JJ.

Disposition: HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES AFFIRMED.

CHUTZ, J

Defendant, Demario Warren, was charged with second- degree murder (count 1) and two counts of aggravated assault with a firearm ( counts 2 & 3). He was

found guilty of the responsive offense of manslaughter on count one and guilty as charged on the two counts of aggravated assault with a firearm. The defendant was

adjudicated a fourth -felony habitual offender. For the manslaughter conviction, the trial court imposed an enhanced sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. For each conviction of aggravated assault with a firearm, the trial court sentenced the defendant to ten years

imprisonment at hard labor. The sentences were ordered to run concurrently.

On appeal, this court affirmed the convictions and sentences for the two

counts of aggravated assault with a firearm. Because the defendant was convicted

of manslaughter by a non -unanimous verdict,' we vacated that conviction and

sentence, as well as the habitual offender adjudication. The matter was remanded to the trial court. See State v. Warren, 2019- 1410 ( La. App. 1st Cir. 7124120), 2020 WL 4250839 (unpublished).

While the defendant' s retrial on count one was pending, the State filed new habitual offender bills of information to enhance the sentences on the defendant' s two convictions for aggravated assault with a firearm. Following a hearing, he was adjudicated a fourth -felony habitual offender on those convictions, and the trial court vacated the previous sentences and imposed an enhanced sentence of life imprisonment at hard labor on each conviction. See La. R. S. 15: 529. 1 ( A)( 4)( b); 2

State v. Shaw, 2006- 2467 ( La. 11/ 27/ 07), 969 So.2d 1233, 1245 ( there is no

1 See Ramos v. Louisiana, _ U. S. _, 140 S. Ct. 1390, 206 L.Ed. 2d 583 ( 2020).

z This was the provision in effect at the time the defendant committed the instant offenses in May 2016. Thereafter, La. R.S. 15: 529. 1( A)(4)( b) was amended and redesignated as La. R.S. 15: 529. 1( A)(4)( c) by 2017 La. Acts, Nos. 257 and 282, §§ 1- 2, effective November 1, 2017. Under La. R.S. 15: 529. 1( K)( 1), the court shall apply the Habitual Offender Law in effect on the date the defendant' s offense was committed.

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prohibition against enhancing sentences under the Habitual Offender Law for more than one conviction obtained on the same date). The defendant filed a counseled and a pro se motion to reconsider sentence, which the trial court denied. The defendant now appeals his sentences. We affirm.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In his two related assignments of error, the defendant argues ( 1) the State

engaged in prosecutorial vindictiveness in belatedly filing habitual offender bills of information following his successful appeal, and ( 2) the trial court erred in

increasing his sentences without cause.

A vindictive prosecution is one in which the prosecutor seeks to punish the

defendant for exercising a protected statutory or constitutional right and thereby violates a defendant' s Fifth Amendment right to due process. United States v.

Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488, 73 L.Ed.2d 74 ( 1982); State

v. Wesley, 49,438 ( La. App. 2d Cir. 2/ 26/ 15), 161 So. 3d 1039, 1043, writ not

considered, 2015- 1096 ( La. 3114116), 188 So. 3d 1065. A defendant has the burden

of proving the affirmative defense of prosecutorial vindictiveness by a

preponderance of the evidence. Wesley, 161 So. 3d at 1043.

The discretion to charge a defendant under the habitual offender law lies with the district attorney. State v. Carter, 610 So. 2d 972, 975 ( La. App. 1st Cir.

1992); see La. R.S. 15: 529. 1. A defendant may be charged as a habitual offender at any time, even after conviction and sentence. La. R.S. 15: 529. 1( D)( 1)( a). A

district attorney has great discretionary power to file a habitual offender bill under La. R.S. 15: 529. 1( D), just as he has the initial unlimited power to prosecute

whom, when, and how" he chooses. State v. Doirthey, 623 So.2d 1276, 1279 ( La. 1993). His use of the habitual offender laws simply provides an ancillary sentencing factor designed to serve important and legitimate societal purposes. Furthermore, the mere use of the habitual offender law will not create a

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presumption of prosecutorial vindictiveness. The events in the course of

prosecution will create a presumption of vindictiveness only when, to a reasonable

mind, the filing of the habitual offender bill can be explained only by a desire to deter or punish the defendant' s exercise of legal rights. State v. Orange, 2002-

0711 ( La. App. 1st Cir. 4111103), 845 So.2d 570, 578, writs denied, 2003- 1352 ( La. 5121/ 04), 874 So. 2d 161 & 2003- 21.95 ( La. 712! 04), 877 So.2d 137.

We find no prosecutorial vindictiveness in the instant matter. The

circumstances do not demonstrate the defendant was punished for the exercise of any legal right. His conviction and sentence for manslaughter were vacated pursuant to Ramos, and the matter was remanded to the trial court. The State

chose to retry the defendant on that charge. Regardless, on the previous

manslaughter conviction, the State filed a habitual offender bill of information in order to enhance the sentence for that conviction to life imprisonment. Prior to the manslaughter conviction and enhanced sentence being vacated, the State did not choose to enhance the defendant' s sentences for aggravated assault with a firearm. The State had no reason to do so since it had obtained a life sentence with the enhancement of the manslaughter sentence.

Once this court vacated the life sentence on the manslaughter conviction because of a Ramos issue, the State sought to enhance the defendant' s sentences for aggravated assault with a firearm to ensure the defendant would be sentenced to life as a fourth -felony habitual offender, as it had always intended. This action

reflected prosecutorial discretion rather than vindictiveness. See Carter, 610 So. 2d at 975. Moreover, even if we were to conclude the prosecution' s subsequent

filing of new habitual offender bills of information created a presumption of vindictiveness, the State had legitimate objective reasons for proceeding with the habitual offender charges. Specifically, the defendant did, in fact, commit the prior felonies for which he was convicted and which served as the basis for the habitual

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offender proceedings. See Wesley, 161 So.3d at 1045.

The defendant also argues on appeal that the same trial court that imposed the original enhanced life sentence also imposed the instant enhanced life sentences and, thus, the presumption of vindictiveness should apply. In support of

this proposition, the defendant cites to several cases, including State v. Dauzart, 2007- 15 ( La. App. 5th Cir. 5115107), 960 So.2d 1079 and North Carolina v.

Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 ( 1969), overruled in art by, Alabama v. Smith, 490 U. S. 794, 109 S. Ct. 2201, 104 L.Ed.2d 865 ( 1989).

Generally, if a convicted defendant is successful in having his conviction

overturned on appeal and is subsequently re -tried and convicted, the trial court may not then impose a more severe sentence. A defendant may not be punished for

seeking appellate redress. If a trial court imposes a more severe sentence on a

defendant when he is convicted following a successful appeal, the trial court' s

reasons for the increased sentence must affirmatively appear in the record. Otherwise, there is a presumption of vindictiveness. The purpose behind this rule

is to prevent defendants from being penalized for having exercised their

constitutional rights. However, the presumption of vindictiveness is inapplicable where different judges have imposed the different sentences against the defendant, because a sentence " increase" cannot truly be said to have taken place. Dauzart,

960 So. 2d at 1086.

The defendant' s reliance on Dauzart and Pearce is misplaced. The same

trial court presided over the defendant' s original trial and sentencing and the instant proceedings. Notwithstanding, the cases cited by the defendant indicate that a presumption of vindictiveness is triggered when the same trial court imposes a more severe sentence on a defendant after a new trial. Neither of these factors is

present in the instant matter. There has been no imposition of a more severe

sentence on the defendant and there has been no new sentence imposed on him

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after a new trial. Upon remand, the trial court again adjudicated the defendant a fourth -felony habitual offender and sentenced him to a life sentence for each aggravated assault with a firearm conviction. The new enhanced sentences for these convictions were not more severe than the enhanced life sentence imposed for the defendant' s manslaughter conviction. Further, the new enhanced sentences were not imposed after a new trial, since the defendant' s new trial on count one

had not been held at the time of the new habitual offender hearing and sentencing. Moreover, the trial court had no discretion in imposing mandatory enhanced life sentences under the Habitual Offender Law.'

The defendant has failed to produce any evidence of vindictiveness on the part of either the prosecution or the trial court. While the defendant' s arguments seem to focus more on prosecutor ial vindictiveness, he has provided no factual basis for such a claim. Moreover, the defendant' s claims as to the trial court' s

vindictiveness in imposing a harsher sentence on remand is not supported by the record. See Orange, 845 So. 2d at 579- 80.

These assignments of error are without merit.

HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES AFFIRMED,

3 The trial court specifically found there were no reasons to deviate from the mandatory life sentences pursuant to Dorthey. ( R. 441- 42).